Citation Nr: 0620417
Decision Date: 07/14/06 Archive Date: 07/21/06
DOCKET NO. 04-01 820 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Phoenix,
Arizona
THE ISSUE
Entitlement to a rating in excess of 10 percent for tinnitus.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
Nancy S. Kettelle, Counsel
INTRODUCTION
The veteran served on active duty from November 1943 to
January 1946.
This matter comes to the Board of Veterans'' Appeals (Board)
on appeal from a February 2003 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Phoenix, Arizona, which denied the veteran's claim of
entitlement to a separate 10 percent rating for each ear for
his service-connected tinnitus.
In May 2005, a Deputy Vice Chairman of the Board granted a
motion to advance the veteran's appeal on the Board's
document, that motion having been filed by the veteran's
representative a few days earlier. The Board will now
proceed with consideration of the veteran's appeal as a stay
on cases such as his, which was instituted by the Secretary
of VA in April 2005, was lifted in mid-July 2006.
Other matters
In a rating decision dated in May 2003, the RO denied service
connection for a splenectomy. In addition, in an August 2004
rating decision, the RO denied service connection for post-
traumatic stress disorder (PTSD). There is no indication in
the claims file that the RO provided the veteran with notice
of either of these decisions or informed the veteran of his
appellate rights. The Board refers these matters to the RO
for appropriate action.
FINDING OF FACT
The veteran's service-connected bilateral tinnitus is rated
as 10 percent disabling, the maximum rating authorized under
Diagnostic Code 6260.
CONCLUSION OF LAW
There is no legal basis for the assignment of a schedular
evaluation in excess of 10 percent for bilateral tinnitus.
38 U.S.C.A. §1155 (West 2002); 38 C.F.R. §4.87, Diagnostic
Code 6260 (2003); Smith v. Nicholson, No. 05-7168, --- F.3d.
--- , 2006 WL 1667936 (C.A. Fed June 19, 2006).
REASONS AND BASES FOR FINDING AND CONCLUSION
Veterans Claims Assistance Act
The Veterans Claims Assistance Act of 2000 (VCAA), describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2005). The U. S.
Court of Appeals for Veterans Claims has held that the
statutory and regulatory provisions pertaining to VA's duty
to notify and to assist do not apply to a claim if resolution
of that claim is based on statutory interpretation, rather
than consideration of the factual evidence. See Dela Cruz v.
Principi, 15 Vet. App. 143, 149 (2001).
In the instant case the facts are not in dispute. Resolution
of the veteran's appeal is dependent on interpretation of the
regulations pertaining to the assignment of disability
ratings for tinnitus. As will be shown below, the Board
finds that the veteran is already receiving the maximum
disability rating available for tinnitus under the applicable
rating criteria. Furthermore, regardless of whether the
veteran's tinnitus is perceived as unilateral or bilateral,
the outcome of this appeal does not change.
As no reasonable possibility exists that would aid in
substantiating this claim, any deficiencies of VCAA notice or
assistance are rendered moot. See 38 U.S.C.A. § 5103A;
Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance
with the VCAA is not required if no reasonable possibility
exists that any notice or assistance would aid the appellant
in substantiating the claim).
Analysis
The veteran requested an increased evaluation for tinnitus,
specifically a 10 percent evaluation for each ear. The RO
denied the veteran's request because under Diagnostic Code
6260, which specifies the rating criteria for tinnitus, there
is no provision for assignment of a separate 10 percent
evaluation for tinnitus of each ear. The veteran appealed
that decision to the Board.
In Smith v. Nicholson, 19 Vet. App. 63, 78, (2005) the United
States Court of Appeals for Veterans Claims (CAVC) held that
the pre-1999 and pre-June 13, 2003 versions of Diagnostic
Code 6260 required the assignment of dual ratings for
bilateral tinnitus. VA appealed this decision to the United
States Court of Appeals for the Federal Circuit (Federal
Circuit) and stayed the adjudication of tinnitus rating cases
affected by the Smith decision. In Smith v. Nicholson, No.
05-7168, --- F.3d. --- , 2006 WL 1667936 (C.A. Fed June 19,
2006), the Federal Circuit concluded that the CAVC erred in
not deferring to the VA's interpretation of its own
regulations, particularly 38 C.F.R. § 4.25(b), which pertains
to VA's combined ratings table, and 38 C.F.R. § 4.87,
Diagnostic Code 6260, pertaining to tinnitus, which VA has
interpreted as limiting a veteran to a single disability
rating for tinnitus, regardless whether the tinnitus is
unilateral or bilateral. Subsequently, the stay of
adjudication of tinnitus rating cases was lifted.
The veteran's service-connected tinnitus has been assigned
the maximum schedular rating available. 38 C.F.R. §4.87,
Diagnostic Code 6260. As there is no legal basis upon which
to award separate schedular evaluations for tinnitus in each
ear, the veteran's appeal must be denied. Sabonis v. Brown,
6 Vet. App. 426 (1994).
ORDER
A schedular evaluation in excess of 10 percent for tinnitus
is denied.
____________________________________________
R. F. WILLIAMS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs